Legal Watch: 20 Questions: The Facilities Checklist

Whenever a higher education institution is building, renovating, repurposing, or even routinely operating a facility, institutional leaders should be prepared to ask a myriad of questions. Dozens of issues need to be considered, but we have chosen 20 key questions to get you started. The answers should be reviewed by legal counsel, who should endeavor to ferret out any legal risks or oversights.

Paying the Bill: Financial and Tax Implications

1. Have we considered all available alternative arrangements for financing and structure, including privatization, public-private partnerships, and leasing, and complied with any public-bidding requirements?

2. Will the building be bond financed, and what uses will be permissible and prohibited?

3. Will the building be named for a donor, and what gift agreements will control the uses, repurposing, or demolition of the building?

4. Will the building create unrelated business income, and is that acceptable?

5. Will we be able to support maintenance, or will we find the building incurring deferred-maintenance liabilities?

6. Will the building be subject to real property taxes or to payments in lieu of taxes?

Legal Oversight

7. Have we had expert counsel review and negotiate all architect, engineer, and other contractor agreements?

8. How will the legal oversight of the construction process and aftermath of lien waivers be handled?

9. Do we have sufficient premises liability, builder’s risk, and comprehensive insurance coverage?

The Site Itself: Land and Environmental Concerns

10. Does local zoning control the property, and if so, are the building’s size and intended uses permissible?

11. Do any historic-preservation groups or regulations affect or control the building’s exterior or interior?

12. Do we plan to have a “green” or sustainable building and to seek LEED (Leadership in Energy and Environmental Design) certification?

13. Is the location a hazardous-waste site or brownfield (a former industrial or commercial property that may contain environmental hazards)?

Building Safety

14. Is the building in a safe neighborhood, and might its location affect campus crime-reporting statistics as per the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act?

15. Will we have sufficient access control, with both restricted entry and lockdown capability, to create a safe environment for students and staff?

16. Does the building contain asbestos, mold, radon, lead paint, or other dangerous substances that need to be remediated, and are all environmental health and safety regulations and requirements included in the planning?

17. Do we have well-developed emergency procedures and recovery processes for earthquakes, tornadoes, hurricanes, and other disasters?

Use of a New Facility: Other Issues to Keep in Mind

18. Do we have an up-to-date and comprehensive facilities-use policy in place?

19. Have we planned for disability access in conformance with standards and regulations?

20. Will we have appropriate back-up systems to protect sensitive research and meet animal welfare standards?

Ada Meloy is the general counsel of the American Council on Education.

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